Despite overcrowding crisis, prison reform failed. Here’s what went wrong.

The prison reform movement that has helped send U.S. inmate numbers plummeting was born in deep-red Texas, offering a new criminal justice vision that appealed to both Republicans and Democrats, liberals and conservatives.

In the new “justice reinvestment” model, prisons aren’t simply warehouses where inmates are kept as long as possible before being released to offend again. Instead, they are places of rehabilitation and redemption that can help make communities safer while saving money, too.

More than three dozen states embraced the movement to pass a wide range of reforms, frequently coupling reductions in criminal penalties with treatment and enhanced supervision intended to help prisoners succeed after release.

But here in Nebraska — home of the nation’s fastest-growing and most-overcrowded prison system — a justice reinvestment proposal collapsed last month in the Legislature amid bitterness and distrust.

Few states have seen the process fail so completely. So what just happened?

For starters, the broad support from Republicans and conservatives that helped pass such criminal justice overhauls in many states didn’t materialize here.

Gov. Pete Ricketts, the conservative Republican who welcomed the initiative and was an active participant in it, ultimately blasted proposed reductions in criminal penalties as “soft on crime.”

Within the officially nonpartisan Legislature, while nearly every Democrat voted to advance Legislative Bill 920, only a third of Republicans did.

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The state’s most prominent conservative think tank, which has strongly backed prison reform in the past, chose to be silent this year.

“In a state like Nebraska, justice reinvestment has to start and end with conservatives,” said David Safavian, who leads prison reform efforts for the American Conservative Union. “What many folks don’t get is that it helps reduce recidivism and cut crime, but you have to get out in front of the counter-narrative that this is a liberal issue.”

For his part, Ricketts told The World-Herald in a recent interview that in the end he found the entire justice reinvestment model “flawed from the get-go” and “backwards.”

He decided it makes no sense for the state to consider any lightening of criminal penalties until it first invests in back-end treatment and enhanced supervision programs to make sure released inmates don’t reoffend. And even then, he said he doesn’t believe lessening of penalties is warranted.

“You don’t let people out of prison first,” he said. “You have the appropriate sentence for the appropriate crime. That’s independent of how many people you have in prison. Then to keep people out of prison, we can work on the things that can help make them successful so they don’t come back into crime.”

State Sen. Steve Lathrop, the Democratic lawmaker from Omaha who partnered with Ricketts to bring justice reinvestment into Nebraska, said it’s the governor’s thinking that’s flawed.

He said the data produced in the process showed the approach Ricketts and others wanted to take would have had a negligible impact on Nebraska’s mushrooming prison population. Lathrop said the governor and other opponents also ignored the experience of other states that have proved prison populations can be reduced without increasing crime or compromising public safety.

“We had a data-driven process that was abandoned in favor of political rhetoric about being tough on crime,” he said.

Ricketts and Lathrop each blame the other’s rigid negotiating posture for the failure of anything to pass.

Numerous other factors were at play.

Law enforcement groups came out strongly against the measure and proved a powerful force.

The opposing sides also didn’t get down to serious negotiations until the waning days of the session. Too little time remained to find common ground on the complex and emotionally charged issues that impact both those in the justice system and the wider public.

“The devil is in the details, and it’s hard to work out them out when you are in a mad scramble to get something done,” said Douglas County Attorney Don Kleine.

The Nebraska debate also played out in a less favorable political climate, as recent years saw spikes in violent crime both here and nationally that many criminologists believe were tied to social and economic disruptions from the pandemic.

The fact that 2022 is an election year surely didn’t make it any easier to attract supporters.

During the final, failed negotiating session that doomed the bill, backers of the measure found themselves bargaining with an Omaha police officer running for Douglas County sheriff and a state attorney who days later was named the running mate of GOP governor candidate Jim Pillen.

“You are in a mode right now where no one wants to do anything in an election year and have that ‘soft on crime’ tag put on you,” said Sen. John Stinner of Gering, a Republican who backed the reform efforts.

Sen. Suzanne Geist of Lincoln, who led opposition to criminal penalty changes within the Legislature, said her efforts were strictly rooted in public safety concerns, not politics.

Still, she believes the state missed a golden opportunity. During a year Nebraska was flush with both state tax dollars and federal COVID-19 relief funds, it could have made major investments in mental health services and drug treatment and programs to help offenders succeed after release.

“It’s not being tough on crime, it’s being tough on the state to make the resources available across the state,” she said. “How are we going to reduce recidivism if we don’t put significant money into those things?”

The end result: Nebraska’s prison overcrowding woes aren’t going anywhere.

Current projections show the state’s prison system — its 5,500 inmates already 50% over design capacity — will grow another 1,300 inmates by 2030. At that rate, the state won’t just be looking to build the $270 million, 1,500-bed prison Ricketts has been advocating for, but perhaps another.

But Geist and several other lawmakers are talking about picking up the scraps of this year’s failed efforts to hammer out a new plan for the 2023 Legislature to consider.

Ricketts said that during his remaining months in office, he will work with the State Board of Parole to try to implement some of the less contentious reform recommendations that don’t require a change in state law.

Still, for those who hoped to make a significant dent in Nebraska’s chronic prison overcrowding, the results of this year’s session will sting for a while.

“It was just a bad result,” said Sen. John McCollister of Omaha. “And the state will suffer.”

* * *

In 2005, Texas Gov. Rick Perry was told by state corrections officials that they would need several new prisons to keep up with the fast-growing inmate population.

Perry and state lawmakers from both parties instead launched drug courts and enhanced treatment programs to divert low-level offenders from prison. They strengthened supervision under parole and probation. And they evaluated the results they got in terms of reduced recidivism.

Not only did Texas keep enough people out of prison to avoid building the new ones, the state has since shut down 10 prisons, with total estimated savings now reaching $2 billion. At the same time, violent crime rates in the state dropped to their lowest levels since the 1960s.

Other states took notice. By 2010, the U.S. Department of Justice and Pew Charitable Trusts created the Justice Reinvestment Initiative, offering to pay for outside policy experts and data analysis to help states study and reform their criminal justice systems.

Advocates say the process replaced decades of get-tough-on-crime political rhetoric with data-driven analysis of what causes rising inmate numbers and what truly works to make communities safer.

Conservative groups also got on board, including the American Conservative Union, Americans for Prosperity, the American Legislative Exchange Council, the Charles Koch Foundation and a new organization called Right on Crime that formed out of the Texas initiative.

Conservatives were attracted by the chance to eliminate unnecessary government spending. Some in the conservative faith community also embraced the message of personal liberty, redemption and second chances.

“Conservatives are very important because they appreciate and understand you should change the system, but never at the cost of increasing risk or danger to your community,” said Brett Tolman, a former Utah prosecutor who leads Right on Crime.

Now nearly 40 states have gone through justice reinvestment, including Republican-led states like Oklahoma, Georgia, Mississippi and Utah. The federal government under GOP President Donald Trump also passed the First Step Act, which reduced some mandatory minimum penalties within the federal justice system.

The reforms in each state have varied widely. But they most often combine targeted reductions in sentences, diversion programs for nonviolent offenders, enhanced drug and mental health treatment, stepped-up post-release supervision, and assistance to help former inmates reintegrate into society without committing new crimes.

Many believe that the longer a prisoner serves, the better for public safety. But that’s not what the data show, Tolman said. Most often, he said, there’s no relationship between recidivism rates and time spent in prison.

Safavian, of the American Conservative Union, cited a recent study that found when the federal government reduced crack cocaine sentences to match those for powder cocaine, there was no difference between the reoffence rates of offenders who had served the longer terms and those who were released sooner.

“We know it works, and we’ve seen it work in every red state where we’ve pursued it,” Safavian said.

The justice reinvestment movement appears to have indeed contributed to a sizable reduction in incarceration in America. Federal data show states’ collective incarceration rate dropped 17% between 2007 and 2019. And just as notably, the U.S. violent crime rate continued to fall, too, down 19% over that time.

“Being tough on crime is not increasing sentences,” Tolman said. “It’s reducing crime.”

Tolman’s home state of Utah has been held out as an example for Nebraska, because it, too, was facing the prospect of building a new prison when it went through justice reinvestment.

The state’s Republican governor and state lawmakers in 2015 overhauled the state’s justice system, including reducing penalties for low-level drug offenses, creating incentives for inmates that shortened time served and spending millions for treatment.

The results? While Utah and Nebraska a decade ago had nearly identical incarceration rates, they diverged sharply after the Utah changes. By 2019, just before the pandemic, Utah’s incarceration rate was 30% lower than Nebraska’s.

Overall crime in Utah also fell in the years after the reforms, with violent crime rates flat.

Ricketts questions other results of the Utah reforms, citing a 2018 state report that showed recidivism among drug offenders had increased.

Nebraska actually launched a previous justice reinvestment initiative around the same time Utah did. Nebraska’s 2015 effort did briefly flatten the state’s prison growth, but the state was soon back on its fast-growing trajectory, a fact some attribute to the watering down of the study’s recommendations.

A World-Herald analysis earlier this year found no state has grown its prison population and incarceration rate in the past decade more than Nebraska. The state also ranks in the top three nationally in new corrections spending, and is the only state to increase its Black incarceration rate since 2006.

A year ago, the Legislature and Ricketts were at loggerheads over his plan to build a new prison, with Lathrop and others insistent the state could not afford to build its way out of its overcrowding crisis.

That’s when Lathrop proposed to Ricketts that the state take another crack at justice reinvestment.

* * *

Before agreeing to justice reinvestment, Ricketts did his homework. He contacted Republican governors who had been through the process and asked in particular about the Crime and Justice Institute, the Boston-based criminal justice policy group that would be working with the state.

Ricketts decided he was interested in the process and could work with CJI. He said he went in open to whatever CJI’s data analysis found.

Ricketts ended up being co-chair and an active participant in the 15-member justice reinvestment working group, which also included Lathrop, other state lawmakers and representatives of the state’s courts and justice system.

After diving into Nebraska’s prison data, CJI found that the number of inmates coming into the prison system in recent years actually had gone down. But they were staying longer. Time served for drug offenses was up 42%, and such offenders were taking up more than 10% of prison beds.

And despite the longer prison stays, the state’s recidivism rate was rising.

“So longer prison sentences were not making the state safer,” said Len Engel, director of policy for CJI. “They just cost taxpayers more money.”

CJI and the state working group began looking at policy changes that might bring down the amount of time inmates served without compromising public safety, Engel said.

The working group broke into subcommittees to tackle various aspects of the justice system. A key subcommittee that included Sen. Terrell McKinney of Omaha, Douglas County Attorney Kleine and Douglas County Public Defender Tom Riley was tasked with looking at possible changes to criminal penalties.

In the end, changes the group proposed included reduced penalties for possession of very small amounts of drugs, eliminating mandatory minimum sentences for some nonviolent offenses, and establishing criteria for judges to determine when sentences for multiple crimes should be served consecutively. But the subcommittee advanced the proposals without Kleine’s support.

Kleine said he’s not knee-jerk opposed to any criminal penalty changes. But he had concerns. For example, he thought turning all low-level drug possession cases into misdemeanors would undermine the county’s current special drug court and its ability to get offenders to confront their addictions.

Engel said the sentencing changes proposed in Nebraska were fairly moderate compared to what he’s seen in other states where CJI has worked.

When the full working group got together at its final meeting to consider all the subcommittee recommendations, changes related to treatment, programming and enhanced supervision had broad support.

But Geist, the Lincoln lawmaker, joined Kleine in opposing the sentencing changes. At that point, Lathrop said, Ricketts mostly listened, not voicing an opinion.

Geist emerged as an influential player in the weeks of debate that followed. Colleagues say she is sympathetic to the plight of offenders — she’s made numerous visits to prisons to learn from inmates — and does not have a “lock ’em up” mentality. But she also trusts the opinions of law enforcement officials and believes strongly in government’s obligation to protect public safety.

“Whether I agree with her perspective, it’s not coming from a bad place,” McKinney said.

Geist for her own part said she enjoyed working with CJI and found its people very professional. But she questioned whether it had a certain agenda or mindset that colored how it interpreted the data. Engel said CJI merely analyzed the state’s own data and then verified the findings with the agencies that provided it.

With no consensus on the sentencing changes, Geist said the working group decided to put them and a disputed geriatric parole program “in the parking lot” while moving on to discussion of other issues. But the group then ran out of time before ever getting back to them, leaving the proposals in limbo.

When the final report was hammered out between CJI staff and members of the working group, it included the 17 policy ideas that all the members agreed on as well as the four others, labeling them as the consensus proposals and non-consensus proposals.

The issue was now in the hands of the Legislature. And as chair of the Judiciary Committee, Lathrop decided to include all 21 proposals in LB 920. Not only did he support them all, he felt they all needed to be considered by lawmakers.

At a public hearing in late January, law enforcement groups came out strongly opposed to the sentencing changes. The association of the state’s county attorneys opposed nearly every proposed change that would have reduced penalties or made inmates eligible for parole consideration earlier.

Days earlier, Ricketts also had come out publicly against the sentencing changes, saying they “aren’t right for Nebraska.”

Engel said that law enforcement tends to be skeptical of changes to criminal penalties. But he said they often eventually come to see that justice reinvestment is a comprehensive approach that reduces the chance they will be re-arresting so many offenders, thus enhancing public safety.

Engel said it’s also not unusual for governors to be conflicted. But he said governors most often conclude some sentence adjustments are warranted if the trajectory of the prison population is going to be altered.

“We didn’t see that happen here,” Engel said.

Said Ricketts: “There were just some things that were clearly going to be detrimental to justice in our state that could not go forward.”

No conservative advocacy groups lined up to support the Nebraska measure. Such groups nationally tend to get involved in a state only when asked. Safavian said his group did receive a request midway through the legislative session, but decided it was too late to try to come in at that point.

The Platte Institute, a Nebraska-based free market think tank, had backed prison reforms in Nebraska in 2015, even holding a joint press conference with the ACLU. But it did not get involved this time.

Jim Vokal, the institute’s CEO, said the organization remains interested in prison reform. But several years ago, it decided it needed to prioritize legislative issues, and prison reform did not make the cut.

With the sides in a standoff, Lathrop was joined by Stinner, the Republican chairman of the Appropriations Committee, in talks with Ricketts seeking to get him to compromise on the sentencing changes. Stinner and Lathrop stressed that such changes were needed to address the inmate growth trajectory.

But Ricketts after a couple meetings said he wanted to move forward only on the consensus items. He noted that the consensus items represented 80% of the recommendations coming out of the justice reinvestment process.

“I thought that we could have got something done if (Lathrop) had been willing to accept 80%, but he wasn’t,” Ricketts said.

Lathrop says the problem with the governor’s thinking is that while the consensus items may have been 80% of the recommendations, they amounted to just a fraction of the bill’s impact, not moving the needle enough on overcrowding.

An analysis by CJI projected that LB 920 as introduced would largely flatten Nebraska’s current inmate growth, reducing Nebraska’s 2030 prison headcount by 1,000 from the current projections.

Conversely, CJI’s analysis of a Geist amendment to strip out the sentencing changes and other provisions indicated it would reduce the inmate count by only 150.

Ricketts said he has doubts about that analysis. By the end of the process, he said, he had lost faith in CJI.

The small projected impact for the consensus items could in part relate to how undeveloped they were.

While the task force report called for enhanced assistance for those being released from prison, the only provision in the bill related to that was a minor one calling for collecting information on how many inmates were eligible for Medicaid.

While the report called for expanding drug courts across the state, there were no judges added to the state court system to make that possible. And while the task force suggested reforms such as increasing supervision for probationers and providing housing assistance for parolees, the bill provided only pilot programs for that.

Lathrop said those programs weren’t more developed in his bill because there had been neither the time nor sufficient available information from the Ricketts administration on what the needs are. He said parole administrators, for example, had no idea what was needed in terms of assistive housing statewide.

Ricketts suggested there was opportunity to flesh those programs out more had Lathrop not insisted on pushing the non-consensus items. He said helping parolees avoid reoffending could alone free up 200 or more prison beds.

Lathrop noted Ricketts himself made no effort to flesh the proposals out and included no funding to do so in his state budget.

After talks with the governor broke down, Lathrop launched a filibuster against the state budget. He wanted to make sure no money was appropriated for Ricketts’ prison until the state had a long-term strategy to deal with the inmate growth trajectory.

Lathrop ended up spending nearly 30 hours talking about prison reform, essentially taking up all the time allotted for consideration of the budget.

Some senators say Lathrop’s strategy was counterproductive, and may have even backfired. The long hours caused some senators to tune out. And some senators were upset the filibuster denied them the chance to try to make desired changes to the budget.

“That left a very bad taste in people’s mouths,” said Sen. Lou Ann Linehan of Omaha.

As LB 920 was about to come to the floor of the Legislature, Ricketts ramped up his criticism of the sentencing changes, calling them a “soft-on-crime package of letting inmates and dangerous criminals out of prison early.”

When asked in a recent interview if he was engaging in the kind of political rhetoric the justice investment process seeks to avoid, Ricketts defended his words.

“When you are lightening up the sentences on dangerous criminals, that is by definition soft on crime,” Ricketts said.

Lathrop said Ricketts’ words suggesting all inmates pose a danger proves he is continuing to play politics on the issue.

When floor debate began in the Legislature in late March, Geist immediately offered her amendment stripping the criminal penalty changes. After it became clear the bill lacked enough votes to pass, Speaker Mike Hilgers of Lincoln brokered one final round of talks seeking compromise.

Ricketts met in the Statehouse the next day with a number of senators and law enforcement representatives. Lathrop and McKinney walked away encouraged.

Lathrop thought there was particular progress on moving up parole eligibility for inmates to help avoid “jam outs” — the hundreds of prisoners each year who completely exhaust their sentences behind bars and thus leave prison without any supervision at all. Everyone agrees that’s a bad thing.

When the group reconvened days later, Geist and the law enforcement representatives countered Lathrop’s jam out proposal with a different one they had convinced Ricketts to back. But they declined to agree to the others.

“Things had changed,” McKinney said. “They found ways to disagree with what they were previously comfortable with.”

Hilgers said he didn’t hear a flat-out rejection of the sentencing changes, attributing the inability to reach agreement to lack of time. “The concern was unintended negative consequences on public safety,” he said.

The next day, as the Legislature reconvened, Ricketts’ administration made one final offer to Lathrop: adopt the Geist amendment and advance the bill, and we can continue to negotiate.

But Lathrop didn’t believe that once the criminal penalty provisions were completely stripped out Ricketts would have any reason to negotiate with him.

Amid that corrosive distrust between the key players — who a year earlier had together launched the Nebraska justice reinvestment initiative — the bill fell seven votes short and died.

Stinner, the budget-committee chair, said it was maddening to see, especially in light of what other states have been able to accomplish.

“It’s a head-scratcher for me,” he said. “I don’t get it.”

* * *

While the bill died, a number of players in this year’s debate say they aren’t ready to write the obituary for justice reinvestment in Nebraska.

Though still cautious on sentencing changes, Geist said she believes she and other lawmakers would be open to them if coupled with more fully developed treatment and support enhancements to stop reoffending.

“Then if we let them out earlier to avail them of that treatment, it’s a different conversation,” she said. “But we’re not there.”

Sens. Justin Wayne and McKinney, who together represent much of North Omaha, said even before the session ended there was already talk about regrouping this summer.

Wayne said he wants to get out of the justice reinvestment “sandbox” and make the business case for reform: At a time the state is crying out for workers, there are thousands of Nebraskans unproductively locked up in state prisons.

McKinney noted that next year will bring a new governor, new faces in the Legislature and hopefully a different political climate, too.

“I think there are ways you can still hold people accountable but take a smarter approach toward it,” he said. “What we have been doing does not work for them, for the taxpayers. Nobody.”

Aaron Hanson, an Omaha police union official who was involved in negotiations on LB 920, said he would like to see a broader overhaul of Nebraska’s “Frankensteinian” sentencing laws into something people can understand. He thinks the players in Nebraska’s criminal justice system have the ability to come together on such issues.

“I think the solution is not going to be found with hired guns from out of state, but by subject matter experts in Nebraska working together to find that healthy balance,” said Hanson, a GOP candidate for Douglas County sheriff. “Ultimately everyone should be working toward better outcomes, not just fewer prison beds.”

Right on Crime’s Tolman said his organization might also be interested in helping Nebraska tackle the issues. The state has been on its radar.

Linehan believes there’s still a chance for Republicans and Democrats, liberals and conservatives, to come together in Nebraska on reasonable and effective prison reforms.

“Some people are ‘throw away the key’ — we have some of that,” she said. “But that’s not the majority.”